Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07HF0301, Dan Barrett McNerney, Judge.
Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Stephanie H. Chow, and Michael Murphy Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Kelly Morgan Culver of felony transportation of marijuana (count 3) (Health & Saf. Code, § 11360, subd. (a)), but could not reach a verdict on the remaining charges of possession of concentrated cannabis (count 1) (§ 11357, subd. (a)) and possession of marijuana for sale (count 2) (§ 11359). The court sentenced defendant to the low term of two years in state prison without considering whether to grant him probation. The People agree the court erred by failing to order a probation report. Beyond that, the judgment must be reversed because the court prejudicially failed to instruct the jury on the lesser included offense of transporting not more than 28.5 grams of marijuana, a misdemeanor. (§ 11360, subd. (b).)
All statutory references are to the Health and Safety Code.
FACTS
Around 9:30 p.m. on February 5, 2007, an officer stopped a truck that had “no license plate lamp and no rear bumper.” Two people were in the truck, including defendant in the passenger seat. Defendant appeared “very nervous[,]... fidgeting in the seat,” avoiding eye contact and “breathing rapidly.” In response to the officer’s request for identification, defendant at first replied he had none, then provided “a paper identification with no... photograph on it.” The officer asked “to check [defendant’s] wallet for identification,” defendant gave him the wallet, and the officer found inside $1,070 (including 22 $20 bills) and a medical marijuana license.
The license was apparently the physician’s statement described below, since neither party contends defendant had an identification card issued pursuant to the Medical Marijuana Program, also discussed below.
In response to questioning, defendant stated he “had about two ounces of marijuana in the car with him.” A search of his person uncovered a marijuana pipe and a glass jar containing about half a gram of marijuana in his pocket. In response to questioning, defendant stated “he had some more [marijuana] in the backpack” “at his feet.” Inside the backpack was a coffee can containing “four plastic bags with... different amounts of marijuana; a digital scale; a plastic jar with marijuana; three small plastic bags with concentrated cannabis or hashish”; and “one small plastic pill jar with more concentrated cannabis inside.” In total, the backpack contained about 53 grams of marijuana. Thus, the total amount of marijuana in the backpack and on defendant’s person was about 53.5 grams.
At defendant’s home, a search of his bedroom uncovered a plastic grocery bag and a small jar containing loose marijuana leaves and stems which would generally be used to make concentrated cannabis.
An officer testifying as an expert in narcotics sales opined defendant possessed the marijuana for sale based on “the amount [of marijuana], the money, the cell phone, the scale, the packaging, the different amounts, [and] the totality of everything that’s been presented.”
About three and a half months before this incident, on October 19, 2006, defendant and another man were arrested for trying to sell hash oil to a medical marijuana dispensary.
Defense Case
When defendant was five years old, he was diagnosed with attention deficit disorder, a condition that “continued throughout his life.” When he was nine or 10 years old, he injured his knee, an injury that still caused him pain as an adult, and also broke his wrist. Around age 17, he broke his collarbone and as a result had a steel plate with six screws in his shoulder. He had also suffered two grand mal seizures.
In October 2005, a doctor gave defendant a physician’s statement prescribing him marijuana with “a time limit of one year....” The doctor advised defendant to use “between one-half and one ounce per week.” A little over a year later, when defendant visited his doctor to renew the statement he told the physician he “had been smoking about an ounce and a half a week to two ounces at times.” The doctor advised defendant to “try and cut back” to one ounce a week. At the time of defendant’s arrest in this case, he was using an ounce to one and a quarter ounce a week. The doctor discouraged his patients from transporting marijuana due to the legal risk, and advised them to lock marijuana in the trunk or another receptacle if transport was necessary.
At the time of his arrest, defendant lived with his mother. His mother knew he smoked marijuana for medical reasons; she paid for the marijuana. She was nervous about him leaving marijuana in the house so she asked him to consolidate it and not to leave it in the home when he was not there.
The cash in defendant’s wallet included $500 from his girlfriend for rent since she was staying with him at his mother’s apartment. Also included was $500 from his mother to pay for an attorney in the case about defendant’s attempt to sell hash oil to a dispensary. Defendant had bought the digital scale to “regulate [his] use and to make sure that [he] was not getting ripped off when [he] made purchases.”
Prosecution Rebuttal
During the vehicle stop, when the officer asked defendant about the cash in his wallet, defendant claimed it was “from his painting job.”
DISCUSSION
The Court Erred by Failing to Instruct the Jury on the Lesser Offense of Transporting Not More than 28.5 Grams of Marijuana
Defendant contends his “conviction should be reversed because CALCRIM No. 2361, the instruction for illegal transportation of more than 28.5 grams of marijuana, misstates the law in two primary respects.” First, as clarified in defendant’s reply brief, he asserts CALCRIM No. 2361 fails to require that “the entire 28.5 grams of transported marijuana be unlawful.” Second, relying on the Medical Marijuana Program (section 11362.7 et seq.), he argues CALCRIM No. 2361 fails “to advise the jury that qualified patients... can possess or transport up to eight ounces of marijuana, for medical purposes, without additional proof that the amount of marijuana be ‘consistent with the patient’s needs.’” He also argues that even if CALCRIM No. 2361 correctly states the law, the court erred by failing to instruct the jury “on the lesser included offense of misdemeanor transport of 28.5 grams of marijuana or less.”
A trial court bears a sua sponte duty to instruct the jury on affirmative defenses (People v. Woodward (2004) 116 Cal.App.4th 821, 834) and the essential elements of an offense (People v. Flood (1998) 18 Cal.4th 470, 504 (Flood)). A court must also charge a jury sua sponte on a lesser included offense if there exists “substantial evidence from which a jury reasonably could conclude that the defendant was guilty of the lesser offense, but not the greater offense.” (Id. at pp. 481-482; People v. Mendoza (2000) 24 Cal.4th 130, 174.) A court’s duty to instruct on a lesser included offense warranted by the evidence applies regardless of whether a party requested or objected to such an instruction, or “openly relied” on that offense or theory. (People v. Breverman (1998) 19 Cal.4th 142, 155 (Breverman).) Instructing the jury on warranted lesser offenses “prevents the ‘strategy, ignorance, or mistakes’ of either party from presenting the jury with an ‘unwarranted all-or-nothing choice,’ encourages ‘a verdict... no harsher or more lenient than the evidence merits’ [citation], and thus protects the jury’s ‘truth-ascertainment function’....” (Ibid.) “[T]he rule seeks the most accurate possible judgment by ‘ensur[ing] that the jury will consider the full range of possible verdicts’ included in the charge, regardless of the parties’ wishes or tactics.” (Ibid.)
“An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law.” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574.) “[N]o particular form is required as long as the instructions are complete and correctly state the law.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) “The court reviews instructions in context of the entire charge of jury instructions rather than in artificial isolation” (O’Dell, at p. 1574), taking into account “the specific language challenged, the instructions as a whole[,] the jury’s findings” (People v. Cain (1995) 10 Cal.4th 1, 36 (Cain)), and counsel’s closing arguments to determine whether the instructional error “would have misled a reasonable jury....” (Id. at p. 37.) “The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights” (Andrade, at p. 585), or, stated another way, applied the instruction in a way that violated the state or federal Constitution. (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
A trial court’s failure to instruct the jury on all elements of an offense is a constitutional error “subject to harmless error analysis under both the California and United States Constitutions.” (Flood, supra, 18 Cal.4th at p. 475.) Our Supreme Court has “‘left open the question of whether an instructional error [involving a medical marijuana defense] is of federal constitutional dimension or only of state law import [citation]’....” (Wright, supra, 40 Cal.4th at p. 98.) Generally, however, irrespective of the law governing medical marijuana, a court’s duty to instruct on any lesser included offense suggested by the evidence, arising as it does “from California law alone,” is subject to the harmless error test under People v. Watson (1956) 46 Cal.2d 818, 836, i.e. whether “it appears ‘reasonably probable’ the defendant would have achieved a more favorable result had the error not occurred.” (Breverman, supra, 19 Cal.4th at p. 149.) In determining whether instructional error was harmless, relevant inquiries are whether “the factual question posed by the omitted instruction necessarily was resolved adversely to the defendant under other, properly given instructions” (Flood, at p. 485), whether the defendant effectively conceded the issue, or whether “the record not only establishes the element as a matter of law but shows the contrary evidence not worthy of consideration.” (Id. at p. 506.)
An appellant who fails to object to an instruction below does not forfeit “an instructional issue on appeal where... the issue raised asserts a violation of substantial constitutional rights.” (People v. O’Dell, supra, 153 Cal.App.4th at p. 1574.) On the other hand, where the “argument merely goes to the clarity of the instruction,” a “‘party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.’” (People v. Cleveland (2004) 32 Cal.4th 704, 750.) Here, defendant complains, inter alia, of the court’s failure to give any jury instruction whatsoever on the lesser offense of misdemeanor transportation of marijuana, not merely an incomplete one.
In order to assess defendant’s claims of instructional error, we summarize the relevant law on illegally transporting marijuana and the affirmative defense of medical use. Under section 11360, a person who unlawfully transports marijuana is subject to imprisonment in state prison, unless the amount of transported marijuana is “not more than 28.5 grams” (in which case, the offense is a misdemeanor).
The Compassionate Use Act (CUA), adopted by voter initiative in 1996, provides for the legal possession or cultivation of marijuana for “personal medical purposes... upon the written or oral recommendation or approval of a physician.” (§ 11362.5, subd. (d).) The CUA expressly authorizes only possession or cultivation of marijuana for medical needs and is silent on the crime of transporting marijuana. Among the CUA’s declared purposes are that “seriously ill” patients shall “have the right to obtain and use marijuana for medical purposes” and not be “subject to criminal prosecution or sanction” therefor. (§ 11362.5, subd. (b)(1)(A) & (B).)
In 2003, the “Legislature enacted the Medical Marijuana Program (MMP), one purpose of which was to address issues not included in the CUA so as to promote the fair and orderly implementation of the CUA.” (People v. Wright (2006) 40 Cal.4th 81, 85 (Wright).) Section 11362.765 provides an affirmative defense to the offense of transporting marijuana for “a qualified patient or a person with an identification card who transports... marijuana for his or her own personal medical use.” (§ 11362.765, subds. (a) & (b)(1).) The MMP defines “qualified patient” as “a person who is entitled to the protections of [the CUA], but who does not have an identification card issued pursuant to” the MMP. (§ 11362.7, subd. (f).)
In another variation from the CUA, the MMP limits a qualified patient to possessing “eight ounces of dried marijuana,” unless he or she “has a doctor’s recommendation that this quantity does not meet the qualified patient’s medical needs,” in which case the patient “may possess an amount of marijuana consistent with the patient’s needs.” (§ 11362.77, subds. (a) & (b).) The Legislature intended eight ounces of marijuana “‘to be the threshold, not the ceiling.’” (Wright, supra, 40 Cal.4th at p. 97 [“noting that ‘the quantity limitations [set forth in § 11362.77, subdivision (a)] serve only as a floor’”].)
In 2006, our Supreme Court in Wright, supra, 40 Cal.4th 81, recognized that a conflict existed “in the Court of Appeal regarding whether and under what circumstances” the CUA provided an implied defense to the crime of transporting marijuana. (Id. at p. 84.) Specifically, the conflict existed between People v. Trippet (1997) 56 Cal.App.4th 1532, 1551 (Trippet) and People v. Young (2001) 92 Cal.App.4th 229 (Young). “In Trippet,the court held that the defendant, who was arrested while transporting two pounds of marijuana in her car, might nonetheless be able to establish a CUA defense to transportation if she could meet the test set out in Trippet that the ‘quantity transported and the method, timing and distance of the transportation [were] reasonably related to the patient’s current medical needs.’ [Citation.] That broad test itself [was] irreconcilable with the categorical statement in Young that transporting marijuana in a vehicle ‘is not made lawful by the [CUA].’” (Wright, supra, 40 Cal.4th at p. 92.) Nonetheless, Wright found it“unnecessary to resolve the split of authority,” because enactment of the MMP (providing an explicit defense to the crime of transporting marijuana) had rendered the conflict moot. (Id. at p. 88.) Still, Wright noted that “Trippet’s test for whether the defense applies in a particular case survived the enactment of the MMP and remains a useful analytic tool to the extent it is consistent with the statute.” (Wright, supra, 40 Cal.4th at p. 92, fn. 7.)
In 2008, our Supreme Court granted review in two cases where appellate courts held the MMP unconstitutional to the extent it amended the CUA, without voter approval, by setting an eight-ounce limit on the amount of marijuana a patient may possess without doctor approval of a greater amount. (People v. Kelly, review granted Aug. 13, 2008, S164830; People v. Phomphakdy, review granted Oct. 28, 2008, S166565.) Also in 2008, our Supreme Court granted review in People v. Wood, review granted August 13, 2008, S164211, which held the MMP impliedly limits the amount of marijuana a patient may lawfully transport to eight ounces (absent doctor approval of more), and that the trial court properly instructed the jury on this “presumptive eight-ounce cap.”
We turn to the jury instructions given by the court here on count 3 (illegal transportation of over 28.5 grams of marijuana). The court instructed the jury with CALCRIM No. 2361 as follows: “Defendant is charged in count 3 with transporting more than 28.5 grams of marijuana, a controlled substance. To prove the defendant is guilty of this crime, the People must prove: One, the defendant unlawfully transported a controlled substance; two, the defendant knew of its presence; three, the defendant knew of the substance’s nature and character as a controlled substance; four, the controlled substance was marijuana; five, the marijuana possessed by the defendant weighed more than 28.5 grams.” “Possession or transportation of marijuana is not unlawful if authorized by the [CUA], which I have now read to you twice, but I’m not going to read it to you again.” “The [CUA] does apply to count 3[,] and the requirements are the same.”
Previously, the court had indeed instructed the jury twice on the CUA. With respect to count 1 (possession of concentrated cannabis), the court had instructed the jury with a modified version of CALCRIM No. 2377 in relevant part as follows: “Now I’m going to read to you an instruction regarding [the CUA]. [CUA] will apply to count 1, which is possession of concentrated cannabis. It will also apply to count 3, transportation of marijuana. And it will also apply to the lesser charge of count 2, which is simply possession of marijuana. So you are going to hear me repeat this three different times. The fact I repeat it over and over again is not intending to sway you one way or another. I want to make sure you understand. [¶] The compassionate use defense, although it does not apply to count 2, it applies to counts 1 and 3 and the lesser to count 2. So I will go through these with you one at a time. [¶] Possession of concentrated cannabis is not unlawful if authorized by the [CUA]. The [CUA] allows a person to possess or cultivate marijuana or concentrated cannabis for personal medical purposes or as the primary caregiver of a patient with a medical need when a physician has recommended or approved such use. The amount of marijuana or concentrated cannabis possessed must be reasonably related to the patient’s current medical needs. [¶] The People have the burden of proving beyond a reasonable doubt the defendant was not authorized to possess marijuana or concentrated cannabis for medical purposes. If the People have not met this burden of proof, you must find the defendant not guilty of this crime.” The court had also instructed the jury on the CUA with respect to count 2’s lesser offense (possession of marijuana for personal use).
As to the CUA and count 2’s lesser offense of possessing marijuana for personal use, the court charged the jury with a modified version of CALCRIM No. 2375 in relevant part as follows: “Now, as to this lesser offense of possession for personal use, once again the [CUA] defense does apply. Possession of marijuana, as it relates to this lesser offense to count 2, is not unlawful if authorized by the [CUA]. The [CUA] allows a person to possess marijuana for personal medical purposes or as the primary caregiver of a patient who has a medical need when a physician has recommended or approved such use. The amount of marijuana possessed must be reasonably related to the patient’s current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.”
Before the court read these instructions to the jury, the prosecutor stated in closing argument: “There is a jury instruction that says the [CUA] allows a person to possess or transport marijuana for personal medical purposes when a physician has recommended or approved such use.” “The instruction also says the amount of marijuana possessed or transported must be reasonably related to the patient’s current medical needs. In deciding whether marijuana was transported for a medical purpose, also consider if the method, timing, and distance of the transportation were reasonably related to the patient’s current medical needs.”
Defense counsel, in his closing argument, stated: “I want to briefly talk about count 3, which is the transportation charge.... I am going to talk to you about the medical marijuana defense here, the [CUA]. And that act — you will get — in the instruction 2361 there’s a full paragraph that discusses when someone is protected under that statute and not guilty of transporting marijuana. Some of the important phrases in there, it allows a person to possess or transport marijuana for medical purposes when a physician has recommended or approved its use. [¶] You heard from Dr. Denney. He approved [defendant] using marijuana.” “[It] must be reasonably related to his current medical needs. Now, you’ve heard testimony here that he’s using up to an ounce... a week. He has two ounces on his person. There’s no instruction here that’s going to say he has to use everything that’s in his possession every time he moves it.”
During their deliberations, the jurors sent the court a note asking in part about the CUA. In response, the court reread to the jurors “those portions of the instructions as to count 1, count 3, and the lesser to count 2, which discuss[] the [CUA] and, as it relates to this case, the compassionate use defense to the various charges regarding marijuana, cannabis, [and] concentrated cannabis. [¶] One of the reasons I’m going to reread all of these to you is, when I instructed you this morning as to count 3, which was jury instruction 2361, rather than read once again the law regarding compassionate use, I think I simply told you that it’s the same law, which it is. But the law regarding compassionate use as it relates to count 3, transportation, is worded a little bit different than as it relates to concentrated cannabis or simple possession of marijuana.” “Now, defense charge in count 3, transporting more than 28.5 grams of marijuana. [¶] [CUA] also applies to the charge regarding transportation of marijuana. [¶] Possession or transportation of marijuana is not unlawful if authorized by the [CUA]. The [CUA] allows a person to possess or transport marijuana for personal medical purposes or as a primary caregiver of a patient with a medical need when a physician has recommended or approved such use. The amount of marijuana possessed or transported must be reasonably... related to the patient’s current medical needs. [¶] In deciding if marijuana was transported for medical purposes, also consider whether the method, timing, and distance of the transportation were reasonably related to the patient’s current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or transport marijuana for medical purposes. If the People have not met this burden of proof, you must find the defendant not guilty of this crime.” (This discussion of the CUA is contained in CALCRIM No. 2361; the jurors had a written copy of this instruction in the jury room during their deliberations.)
A juror asked the court, “Relating to current medical need, does that mean tonight, or does it mean over the next two weeks?” The court replied, “I am unable to modify this instruction to answer that question for you.” But the court reread to the jury CALCRIM No. 200 as follows: “Some words or phrases used during this trial have legal meanings that are different than from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meaning.”
The jury, after deliberating for about one day, informed the court it had reached a verdict on count 3, but could not agree on counts 1 and 2. Juror 3 told the court the jury was “confused” about the CUA and asked if the jurors could “just ignore that” or could decide whether the doctor’s letter was “valid.” The court stated the doctor’s letter was not “a blanket... defense to every charge”; rather it was “for the jury to decide whether a particular letter in a particular case based on a particular set of facts, whether the [CUA] defense would apply to those facts.”
On appeal, defendant argues that CALCRIM No. 2361 did not require the jury to find he unlawfully transported over 28.5 grams of marijuana. He asserts that, while he “unequivocally” possessed and transported over 28.5 grams of marijuana, “it was doubtful that the jury found he unlawfully possessed over 28.5 grams.” He focuses on CALCRIM No. 2361’s separate requirements that the defendant (1) unlawfully transported marijuana, and (2) possessed marijuana weighing more than 28.5 grams (without specifying that the possession, and particularly the possession of an amount greater than 28.5 grams, be unlawful). He theorizes that, under these instructions, a jury could have found him guilty of unlawfully transporting over 28.5 grams of marijuana even if the jury believed that he possessed some portion of the marijuana for a personal medical purpose and that less than 28.5 grams exceeded his current medical needs. He notes the jury did not convict him of possessing marijuana for sale (count 2) and concludes the jury must have found he transported an amount of marijuana that was illegal purely because it exceeded his current medical need.
In addition, defendant argues reversal is required “because the court failed to instruct on the lesser included offense of misdemeanor transport of 28.5 grams of marijuana or less.” The People counter that “the only evidence was that [defendant] had 53 grams of marijuana in the car with him, and that fact did not support giving an instruction regarding transport of 28.5 grams or less.” This argument ignores the evidence that a portion of the 53 grams of marijuana was for defendant’s personal medical needs. The apportionment between lawfully and unlawfully transported marijuana cannot simply be ignored. In Trippet, supra, 56 Cal.App.4th 1532, the court held that because it was possible for the defendant to establish that the marijuana she was transporting “(or at least all of it above 28.5 grams)” met the current medical needs test, the trier of fact was to decide on remand “whether (and if so what amount) of the marijuana” was “reasonably related to her then current medical needs.” (Id. at p. 1551.) “What precisely are the ‘patient’s current medical needs’ [is] a factual question to be determined by the trier of fact. One (but not necessarily the only) type of evidence relevant to such a determination would be the recommending or approving physician’s opinion regarding the frequency and amount of the dosage the patient needs.” (Id. at p. 1549.)
Chavez v. Superior Court (2004) 123 Cal.App.4th 104, on which the People rely, is inapposite. There, a defendant, convicted of selling and transporting marijuana, sought the return of a portion (for medical purposes) of the marijuana subsequently discovered in a search of his home. (Id. at pp. 107-108.) The seized marijuana consisted of “4.5 pounds dried, 10 pounds drying, and 46 plants.” (Id. at p. 110.) This court held the CUA does not provide for the return of confiscated marijuana and therefore section 11473.5 required its destruction; in addition, the large quantity of marijuana found at defendant’s house — “[a]bout a three-year supply” — was not lawfully possessed or cultivated under the CUA. (Id. at p. 111.)
Here, defendant’s doctor initially advised him to use between a half an ounce and one ounce a week, and a year later, admonished him to try to cut back to one ounce a week. Thus, the doctor’s most current prescription was for one ounce of marijuana a week. One ounce equals 28.349 grams. (Trippet, supra, 56 Cal.App.4th at p. 1547, fn. 10.) Defendant transported 53.5 grams of marijuana. Subtracting one ounce of marijuana from 53.5 grams leaves 25.15 grams (less than 28.5 grams). Thus, evidence existed “‘“from which a jury composed of reasonable [persons] could... conclude[]”’ that the lesser offense, but not the greater, was committed.” (Breverman, supra, 19 Cal.4th at p. 162.) Therefore, the court erred by failing sua sponte to instruct the jury on the lesser offense of transporting 28.5 grams or less of marijuana.
We must still decide whether it is reasonably probable that a result more favorable to defendant would have been reached absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Having reviewed all relevant parts of the jury instructions given and the attorneys’ closing arguments, as well as the evidence relevant to defendant’s current medical needs, and bearing in mind no instruction was read on the lesser offense, we conclude it is reasonably likely the jury misunderstood and misapplied the law. Nothing about the method, timing or distance of the transportation of marijuana here was particularly salient to the issue of defendant’s current medical needs (as opposed to whether he possessed any marijuana for sale). Rather, the most salient factor was the doctor’s testimony he initially prescribed defendant between one-half an ounce and one ounce of marijuana a week and later advised him to try to cut back to one ounce weekly. We do not find it reasonably likely the jury found the usual, everyday meaning of “current medical need” to mean the amount of marijuana needed for medical purposes for the time span of the transportation (in other words, that a patient may only transport an amount of marijuana that might be needed to alleviate pain during the ride). Because the jury was not instructed it could find defendant guilty of transporting 28.5 grams or less, it did not “‘consider the full range of possible verdicts’ included in the charge....” (Breverman, supra, 19 Cal.4th at p. 155.) The error was prejudicial.
Due to our reversal of the judgment on this ground, we need not consider defendant’s arguments CALCRIM No. 2361 misstates the law by (1) failing to state a qualified patient may transport up to eight ounces without exceeding “‘current medical need’” and (2) articulating the standard “‘current medical needs’” instead of an amount of marijuana “consistent with the patient’s needs” under section 11362.77, subdivision (b) of the MMP. Nor need we address his assertion the court improperly sealed the count 3 verdict before the jury finished deliberating on counts 1 and 2.
DISPOSITION
The judgment is reversed.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.